Court to Hear Michigan Affirmative Action Cases
By Jennifer Graham
The Stanford Daily

STANFORD, Calif. - The Supreme Court will hear oral arguments Tuesday in two cases that pose the biggest challenge to the use of affirmative action in university admissions decisions since the landmark 1978 Bakke case. The court's decision could potentially bar the use of race in considering applications - even at private universities like Stanford University.

The two cases, Gratz vs. Bollinger et al. and Grutter vs. Bollinger et al., have been brought against the University of Michigan by Jennifer Gratz and Barbara Grutter, white women who were denied admission as undergraduate and law school applicants, respectively.

In both admissions processes, Michigan openly uses race as a factor in making admissions decisions. For undergraduate admissions, students are admitted according to a point-based selection index, where students of certain races or ethnicities are awarded extra points, as are children of alumni and students from certain regions from the state, for example. At the law school, admissions officers have stated that race is sometimes used as a factor to decide between candidates.

The plaintiffs have argued that the Michigan policies cannot be justified under the equal protection clause of the Fourteenth Amendment and that its policies violate the criteria for using race that were established in the Bakke case, which outlawed the use of racial quotas but found that race could be considered as one of many factors in admitting students.

Michigan has argued that its policies do not amount to quotas, demonstrated by varied representation of students on color in its schools. It argues it is justified in considering race because creating diversity in higher education constitutes a compelling government interest and its use of race is "narrowly tailored" to that end, meeting the burden of proof established in the Bakke case.

While these cases have been brought against a public university, private institutions such at Stanford have their policies at stake as well because they receive federal funding for research and scholarships.

When asked if a ruling against Michigan would force Stanford to change the role of affirmative action in it admissions policies, Pamela Karlan, a professor of public interest law, responded, "The short answer to that is almost certainly yes."

Karlan explained that, because Stanford receives federal funds, it is subject to the same rules concerning race discrimination as public universities under Title IV of the Civil Rights Act of 1964.

The Office of Undergraduate Admissions has not changed any of its policies in anticipation of the ruling, which will be made in early summer. But, admissions officers say that even a ruling against Michigan would not necessarily keep Stanford from considering race in admissions decisions.

"Stanford is strongly committed to educating a community of students that is diverse in many ways, and although our efforts to attract and enroll a diverse class could certainly be hindered if the Supreme Court rules against the University of Michigan, so much depends on the nuances of the ruling," said Dean of Admission and Financial Aid Robin Mamlet.

Stanford, along with many other universities and corporations, has filed an amicus curiae brief with the Supreme Court in support of Michigan's policies.

Legal scholars say there is a plethora of possible rulings that would fall in between baring the use of race in admissions decisions entirely and deciding that Michigan's policies are entirely constitutional.

"It is possible that if the Court invalidates Michigan's admissions policy, it will do so on narrow grounds that allow for some race consciousness in admissions," said Law Prof. Richard Ford. "Such a result would be similar to the Court's reapportionment cases in which race conscious redistricting was limited but not invalidated. There and in other contexts, such as Bakke, the Court held that the use of race was subject to 'strict scrutiny' but that it could survive such scrutiny if sufficiently refined and necessary for compelling governmental ends."

Stanford does not use a quantitative method for evaluating applicants similar to Michigan's undergraduate admissions policy, and therefore a ruling against Michigan's specific policy would not necessarily deem Stanford's policy unconstitutional.

Ford added that other potential outcomes would be for the Court to further define what types of race consciousness are acceptable in making admissions decisions or for the Court to overturn Bakke and say that it is never constitutional to consider race.

Both Karlan and Ford said that they believe the Michigan policies to be constitutional.

"The Constitution permits race consciousness when it serves a compelling purpose," Ford said. "Diversity in education is such a compelling purpose. Michigan's policy is not a quota system as prohibited under Bakke; instead it is a limited consideration of race in conjunction with other factors - exactly what the Bakke opinion allows."

He added that, because of Michigan's size and limited budget, it would be difficult for such state schools to use the more qualitative methods of admitting students that schools like Stanford use.

"A legal requirement that, in order to consider race in admissions, all schools must devote the resources to admissions that smaller elite and wealthy universities such as Stanford do could effectively 'price' many schools out of affirmative action," Ford said. "I do not believe the Constitution mandates this result."

The Law School will be running a live feed of the arguments this morning at 9:15 a.m., and a coalition of student groups will hold a rally in support of affirmative action at noon in White Plaza.

Copyright ©2003 The Stanford Daily via U-Wire